NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 20a0263n.06

Case No. 18-5050

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PHILLIP L. GILLIAM,

Petitioner-Appellee,

v.

UNITED STATES OF AMERICA,

Respondent-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE

O P I N I O N

BEFORE: COLE, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.

COLE, Chief Judge. In 2012, Phillip Gilliam pleaded guilty to one count of possessing a 

firearm as a convicted felon in violation of 18 U.S.C. § 922(g). Based on five prior convictions 

for aggravated burglary under Tennessee law, the district court deemed Gilliam an armed career 

criminal under the Armed Career Criminal Act (“ACCA”). This finding relied on then-existing 

Sixth Circuit precedent, United States v. Nance, 481 F.3d 882, 887–88 (6th Cir. 2007), which held 

that Tennessee aggravated burglary fits the definition of generic burglary, and therefore 

categorically qualifies as an enumerated “violent felony” under the ACCA. The district court 

sentenced Gilliam to the mandatory minimum of 15 years’ imprisonment. See 18 U.S.C.

§ 924(e)(1). 
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Subsequently, in United States v. Stitt (Stitt I), 860 F.3d 854, 858–62 (6th Cir. 2017) (en 

banc), our court, sitting en banc, overruled Nance, deciding that Tennessee’s aggravated-burglary 

statute is indivisible and sweeps more broadly than generic burglary because it includes burglary 

of vehicles used for overnight accommodation. Our holding in Stitt I meant that Gilliam’s 

convictions for aggravated burglary under Tennessee law no longer qualified as predicate offenses

for purposes of the ACCA. See id. at 862. Accordingly, the district court granted Gilliam’s motion 

under 28 U.S.C. § 2255 and vacated his 15-year sentence. On December 15, 2017, the district 

court resentenced Gilliam to time served and issued an amended judgment. The government filed 

a timely notice of appeal on January 16, 2018. See Fed. R. App. P. 26(a). We then held the appeal

in abeyance pending a decision by the Supreme Court on the government’s petition for certiorari 

in Stitt I.

The Supreme Court granted certiorari and reversed our decision in Stitt I, holding that 

burglary of vehicles used for overnight accommodation falls within the scope of generic burglary. 

United States v. Stitt (Stitt II), 139 S. Ct. 399, 406–08 (2018). Following Stitt II, a panel of our 

court decided that because the Supreme Court reversed the rationale by which we overruled Nance, 

Nance’s holding “is once again the law of this circuit.” Brumbach v. United States, 929 F.3d 791, 

794 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020). Under Nance, Gilliam’s prior convictions 

for aggravated burglary under Tennessee law are predicate offenses, and he once again qualifies 

as an armed career criminal under the ACCA. See Nance, 481 F.3d at 888. In recent cases raising 

the same issue, we have consistently instructed the district court to reinstate the original sentence. 

E.g., Brumbach, 929 F.3d at 795; United States v. Bateman, 780 F. App’x 355, 357 (6th Cir. 2019); 

Greer v. United States, 780 F. App’x 352, 353 (6th Cir. 2019); United States v. Crutchfield, 785 

F. App’x 321, 324 (6th Cir. 2019); United States v. Bawgus, 782 F. App’x 408, 410 (6th Cir. 2019); 
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United States v. Hamilton, 774 F. App’x 283, 283 (6th Cir. 2019) (per curiam); Bell v. United 

States, 773 F. App’x 832, 833 (6th Cir. 2019); Mann v. United States, 773 F. App’x 308, 309 (6th 

Cir. 2019) (per curiam). 

Gilliam argues that we nevertheless should affirm his amended sentence—or at minimum 

remand for further consideration—based on grounds the district court did not have occasion to 

consider. Even Gilliam acknowledges, however, that binding precedent forecloses these 

alternative arguments.

First, Gilliam raises an alternative reason as to why aggravated burglary under Tennessee 

law is broader than generic burglary: the definition of “entry” under Tennessee’s aggravatedburglary statute, he argues, is broader than a generic “entry,” such that a mere attempted burglary 

may be treated as a burglary under the Tennessee statute. In Brumbach, however, we rejected an 

identical argument as foreclosed by Nance. 929 F.3d at 795. And we have consistently rejected 

the argument in similar cases since Brumbach. E.g., United States v. Brown, —F.3d—, No. 18-

5356, 2020 WL 1966845, at *3–7 (6th Cir. Apr. 24, 2020) (providing an extended discussion of 

the entry argument raised here and rejecting it on the merits); White v. United States, No. 17-

5967/5969, 2020 WL 773056, at *2 (6th Cir. Jan. 21, 2020) (order); Bearden v. United States, No. 

17-5927, 2019 WL 7882516, at *2 (6th Cir. Nov. 6, 2019) (order); Bateman, 780 F. App’x at 356;

Crutchfield, 785 F. App’x at 324; Bawgus, 782 F. App’x at 409. Gilliam provides no reason to 

conclude that precedent does not bind us here. 

Second, Gilliam argues that the government cannot establish that his predicate offenses for 

ACCA purposes were “committed on occasions different from one another.” See 18 U.S.C. 

§ 924(e)(1). Specifically, Gilliam contends that a court may not consider non-elemental facts 

when conducting a different-occasions analysis, and time and location are not elements of 
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aggravated burglary in Tennessee. This argument is foreclosed by our decision in United States 

v. Hennessee, 932 F.3d 437 (6th Cir. 2019), cert. denied, 140 S. Ct. 896 (2020). In Hennessee, we 

held that there is no elemental-facts-only limitation in the different-occasions analysis, and 

therefore, “a district court may consider both elemental and non-elemental facts contained in 

Shepard-approved documents” when conducting a different-occasions analysis. Id. at 444. The 

Shepard-approved documents here show that Gilliam committed at least three burglaries on three 

separate occasions.

1

We therefore vacate Gilliam’s amended sentence and remand with instructions for the 

district court to reinstate his original sentence.

1

 Gilliam filed a motion to take judicial notice of certain state court documents and pattern jury 

instructions. Federal Rule of Evidence 201 allows us to take judicial notice of facts that are “not 

subject to reasonable dispute,” including facts contained within Shepard documents. See Fed. R. 

Evid. 201(b); see also United States v. Ferguson, 681 F.3d 826, 834 (6th Cir. 2012). We grant in 

part Gilliam’s motion to take judicial notice, taking notice of the Shepard documents’ description 

of dates on which Gilliam committed his prior offenses. We otherwise deny the motion.